Authors: Prof. Dr. Gregor Thüsing, LL.M. (Harvard) and Lena Bleckmann, on behalf of the Federal Anti-Discrimination Agency (ADS) Year of publication: 2022

Brief overview

The legal opinion discusses, in the context of work, discrimination against persons who bear caregiving responsibilities for their relatives. This happens specifically in the light of EU Directive 2019/1158.
The opinion sets out how caregiver discrimination can already come under the law as it stands now, what deficits exist when it comes to protecting those affected and in what ways this situation and the provisions of the Directive that need to be implemented call for modification and amendment.
The focus is also on the role that the Federal Anti-Discrimination Agency has played and will in future have to play in addressing caregiver discrimination. Moreover, it takes a closer look at implementation needs in the context of paternal leave.

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Main results

Limitations in the scope of the General Equal Treatment Act (AGG) confining the discrimination grounds referred to in section 1 of the AGG, result in gaps in protection of caregivers. Specifically, the Act only covers caregiver discrimination in form of indirect discrimination on grounds of gender. While Art. 11 of Directive 2019/1158 could be understood – from its wording – as a mere prohibition of victimisation as provided for in section 612a BGB (Civil Code), its reading need not perforce be that narrow. By contrast, updating protection of caregivers from discrimination in line with the provisions of the AGG can effect a decisive improvement, especially thanks to the immanent obligations to take account of the rights, legal interests and other interests of the other party.

Broadening the AGG to include caregiver discrimination would also widen the competences of the Federal Anti-Discrimination Agency in this respect. This would not only enhance the protection of those affected in the individual instances, but also give hope for the gradual elimination of existing disparities in the world of work, promoted by public relations and information efforts.

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Options for action

The legal opinion endorses broadening the discrimination grounds in the AGG by including the concept of ‘family caregiving responsibilities’. Based on that, a new regulation on justification with respect to this new discrimination ground should be included in sections 8 et seq. of the AGG.

However, if caregiver discrimination were to be regulated solely within the context of prohibition of victimisation pursuant to section 612a of the Civil Code (BGB), more extensive legal adjustments would have to be made. For instance, the provisions of Articles 12, 13 of Directive 2019/1158 relating to penalties and to the burden of proof would have to be implemented although they are already regulated in sections 15, 22 of the AGG. Moreover, the competence of the Federal Anti-Discrimination Agency provided by Art. 15 of Directive 2019/1158, would have to be amended elsewhere.

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